Part-time ‘water clerk’ not similarly situated to full-time assistant town clerk
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Friday, July 1, 2016

Part-time ‘water clerk’ not similarly situated to full-time assistant town clerk

By Kathleen Kapusta, J.D. Job responsibilities, part-time versus full-time employment, and performance are all relevant factors that may be considered when determining whether employees are similarly situated in the context of budget-based terminations, the Fifth Circuit explained, affirming summary judgment against the Section 1981 race discrimination claim of a part-time city employee purportedly terminated for budgetary and performance reasons (Morris v. Town of Independence, June 28, 2016, Owen, P.). Kindness of his heart. Hired as a part-time assistant town clerk by the mayor out of the "kindness of [his] heart," after a mutual acquaintance referred her, the African-American employee’s exact employment role was seemingly undefined. She ultimately ended up collecting water and sewer bills in a "water clerk" position, which was subordinate to that of assistant town clerk. Terminated. She was fired seven months later, purportedly due to budget cuts. As an additional reason, the mayor claimed her termination was motivated in part by performance concerns and his understanding that she was "going to get a job somewhere else." Although he testified he had received verbal complaints about her performance, the complaints were never documented and he had no personal knowledge of the issues. The employee then sued, asserting federal and state law claims of race discrimination. Finding that she failed to show the city’s proffered reasons for her termination were pretext, the court granted summary judgment against her claims. Pretext? On appeal, the employee challenged only the lower court’s judgment with respect to her Section 1981 claim. In an effort to show pretext, she argued that a Caucasian, full-time, assistant town clerk retained her job even though she was hired only a month before the employee was discharged. She also claimed that shortly after her termination, the mayor hired a white male as a superintendent in the water and sewer department, and later hired a white female in the same position the employee had previously held. She further claimed that she received "no reprimands, write ups, or disciplinary procedures" during her employment and that the town clerk had assured her that her job was secure. Similarly situated. For its part, the city did not contest that the employee satisfied the first three elements of her prima facie case. Rather, it argued that she failed to show similarly situated employees were treated more favorably under nearly identical circumstances. While the district court appeared to agree that she had not satisfied this requirement, it assumed without deciding that she had and instead held that she failed to demonstrate that the city’s stated reasons for her termination were pretext. In affirming the grant of summary judgment, the appeals court found she failed to set forth a prima facie case. While the employee offered as a comparator the full-time assistant town clerk who retained her job, they were not similarly situated. The employee admitted she did not perform the traditional job responsibilities of an assistant town clerk and did not dispute that the clerk replaced another full-time employee who held that title and performed the actual job responsibilities of assistant town clerk. Further, the court pointed out, the employee worked in part-time capacity while the alleged comparator worked full-time. And although she claimed she was never reprimanded, she did not dispute the mayor’s assertion that he received verbal complaints from other employees regarding her performance and she offered no evidence that the proffered comparator, or any other employee, was retained despite performance concerns. Unique job. Arguing that her "unique" job role should not bar her ability to present a prima facie case, the employee contended that differences between their job duties were not dispositive. The employee relied on Ercegovich v. Goodyear Tire & Rubber Co., in which the Sixth Circuit rejected a narrow reading of prior precedent that would require "[a] plaintiff to demonstrate that he or she was similarly-situated in every aspect to an employee outside the protected class," clarifying that a plaintiff need only "demonstrate that he or she is similarly-situated to the non-protected employee in all relevant respects." To the extent that the Sixth Circuit’s requirement that the differences between a plaintiff and proffered comparators be relevant to the challenged employment action differed from the law in the Fifth Circuit, the court expressed no opinion. Instead, it found that the employee did not make the requisite showing. Her part-time employment and differing job functions, coupled with the sui generis nature of her employment, distinguished her position from that of the proffered comparator. And that the mayor had received verbal complaints about her performance was yet another relevant, distinguishing factor, said the court, finding that she failed to set forth a prima facie case of race discrimination.

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